Lawyers as Heroes and Collateral Damage from the Cold War

I tend to enjoy blog posts that are informal and personal, so I hope you will not mind if I adopt that tone. After all, if you take too much time composing, it’s not really blogging, is it? None of what I say below will be carefully researched or, for that matter, carefully edited. Do not take this approach in law school except, of course, if you’re writing a blog.

Since I am being personal, I will begin by saying that Professor Ken Broun, the author of “Saving Nelson Mandela,” is a prince among men. You ought to get to know him if you have chance. Although he retired recently, he is still a big presence around Carolina Law, and a visit to his office will be well worth your time. He can regale you with stories about South Africa, or his time as mayor of Chapel Hill, or his years as dean of Carolina Law or his frequent jazz piano gigs around town.

I had many reactions to Professor Broun’s book but in this brief note I will focus on two: lawyers as heroes and collateral damage from the Cold War.

For obvious reasons, I like stories about brave lawyers. In fact, I keep mental track of them, probably as a way of balancing the stories and jokes and urban legends one hears about dishonest and unscrupulous members of our profession. An off-the-top-of-the-head list would include Kenyan human rights lawyers who in the 1980s and 90s resisted President Moi’s creeping autocracy and judicial cooptation. Reading about those lawyers was one of the things that long ago inspired me to attend law school. More recently, in the mid-2000s, Pakistani lawyers led resistance to similar autocratic moves by President Musharraf. In both instances, the lawyers paid with their liberty, their blood, and, in some instances, their lives.

We do not have to travel so far from home to find models of lawyer heroism. Think of the United States military lawyers who in the recent past stood up to their superiors (and public opinion) by insisting on some version of due process for war-on-terror detainees. Or, closer still, simply read the Daily Tar Heel and learn about the controversial, often courageous advocacy work undertaken by the same Carolina Law professors who will be teaching your classes in the fall.

Professor Broun’s book highlights lawyers who risked everything to fight for truth and justice in apartheid South Africa. Remember Joel Joffe? He was the 30-year-old English speaking South African who wasn’t particularly political, was planning to emigrate to Australia to get away from the tumult, and who in the meantime was engaged in a lucrative law practice. He did not want any part of representing the Rivonia defendants, but when their relatives sought him out and began telling him stories of how they had been attacked and oppressed, it made him mad. He ended up coordinating the defense of many of the accused and acting as a sort of informal trustee to many of their family members. If you were confronted by such injustice, would you risk your livelihood, your reputation, your social standing? Joel Joffe did, and that makes him a lawyer hero, at least in my book.

Or what about Bram Fischer? He was a leading communist in South Africa who was intimately involved in the anti-apartheid struggles. He very clearly put himself at heightened risk by agreeing to argue on behalf of the Rivonia defendants, yet he agreed to articulate a forceful and profoundly controversial and unpopular defense. Professor Broun’s book points out that there were thorny ethical issues involved when Fischer agreed to represent defendants even though he might eventually be accused of related crimes. Nonetheless, his actions as a lawyer were selfless and heroic. (Interestingly, by the way, Professor Broun reports that Fischer was not a particularly dynamic speaker. Carolina Law recently lost one of our great litigators and leaders, Julius Chambers. He was a giant among civil rights lawyers, yet no one would describe his oratory as scintillating.)

In a twisted sort of way, it is at least arguable that Justice de Wet, who presided over the Rivonia trial, was a hero in his own right. Professor Broun reports that it is unclear whether he received marching orders from the leaders of the apartheid regime. But some evidence exists to indicate that he resisted outside pressure and presided over a largely impartial trial. (Of course, merely assuring a procedurally fair trial does not achieve justice when the laws being applied are fundamentally unfair.) Professor Broun indicates that there was grudging admiration for the judge and the judiciary on the part of at least some outside observers. So, although perhaps not a hero, Justice de Wet gives us pause to consider the positive role that a lawyer can play even when he is representing an unjust regime.

Professor Broun repeatedly reminds us that the Cold War played a significant role in the Rivonia trial. I was born in 1961 and so I lived through a good portion of The Cold War. I can remember as a young child in New York City asking my mother about the yellow Fallout Shelter signs that guided citizens to thick-walled basements and subway tunnels in the event of a nuclear strike by the Soviet Union. It was a tense time with the seemingly constant threat that the war would turn hot, but one easily forgets that even though the war was “cold,” it had a terribly destructive influence on justice and human rights in non-communist countries around the world. Across Africa and other parts of the developing world, bloodthirsty, corrupt, incompetent dictators could be assured of American financial and political support so long as they remained staunchly anti-communist. Perhaps the most commonly cited example was Mobutu Sese Seko, whom the CIA installed as president of Congo. Once in power, he renamed the country Zaire and set about decades of pillaging the country on his way to becoming one of the wealthiest individuals on the planet. There were dozens upon dozens of similar instances across Africa and the rest of the developing world.

As Professor Broun’s book reminds us, fear of the communist scourge played an important role in extending the lifespan of apartheid. Unlike many other African countries, which had learned early in the Cold War to manipulate the U.S.’s mortal fear of the Soviet Union, and who cynically flirted with the communists whenever they wished to extract concessions from the U.S., South Africa’s apartheid leaders appeared truly to hate communists and communism and therefore were a reliable bulwark against its spread. (South Africa was militarily involved in Cold War proxy conflicts in Angola and Mozambique, among other places). The apartheid leaders, who were unjust and arguably evil, but were not stupid, justified the Rivonia trials not as combatting black majority rule, but as opposing the spread of communism; this, even though most of the defendants had little or no formal association with the South African Communist Party. The United States, ever fearful, bought the justification and, to a large extent, stayed on the sidelines of the Rivonia trial and, more broadly, the anti-apartheid struggles that continued into the 1990s. It is noteworthy, and in my view shameful, that American government officials as late as the late 1980s were vetoing legislative and diplomatic efforts to isolate South Africa’s apartheid leaders and were referring to Mandela (who had been in jail for decades by that point) and his brethren as terrorists. As Professor Broun points out, the fall of the Berlin Wall and the end of the Soviet empire hastened the demise of apartheid because the apartheid regime no longer had a communist bogyman to blame for its oppression.

Those are my thoughts about Professor Broun’s book. I have two parting questions for prospective law students. First, will you be a lawyer hero if fate gives you the chance? Second, when you are a practicing lawyer will you have the wisdom to at least question assaults on civil and human rights perpetrated in the name of the War On Communism, the War On Drugs, the War On Terrorism, The War On Extremism, or whatever the next war is that is coming down the pike?

If you want to weigh in on these questions or offer any insight into any other issues I raised here, please respond in the comments below. I look forward to hearing your take on this great book.

RE: Lawyers as Heroes and Collateral Damage from the Cold WarI really appreciate your post because it helped me to ask myself if there are similar situations occurring right now in which a brave lawyer is needed. The first area that came to mind was surrounding the current situation in Ukraine. I spent a couple years living in Ukraine and I saw a lot of the corruption and briber which surrounds a lot of every day life there. Recently, brave lawmakers, disgruntled citizens, and democratic politicians have helped to overthrow a corrupt government which was leading the country down a road that the citizens didn't want to take. However, just when it seemed that the overthrow was complete, pro-Russians, and possibly Russian leaders, have taken steps to annex, or steal, part of Ukraine and occupy other areas in the East. However, going back to your comments on the Cold War mentality that led the US to waste time in dealing with apartheid, some similarities can be drawn to the situation in Ukraine today. The US is handing out a few sanctions, but taking few serious actions to help the new Ukrainian government or to stop Putin's game of seeing how far he can push the world before the world pushes back. We are afraid to take to action or assign any blame because we don't want to risk offending Putin.
In short, your blog opens up a serious line of thinking and a need to consider where brave lawyers are needed today and how we can prepare to be those kind of lawyers, rather than the lawyers who supply the jokes that we have all heard.
-Thanks again for the post
AdamPosted by Adam Sorenson on Wed. July 23, 2014 6:12 PM

RE: Lawyers as Heroes and Collateral Damage from the Cold WarAdam,
Thanks for your thoughtful comment. It is true that when you begin looking at instances where the United States has sat on the sidelines rather than act to uphold justice and human rights, the list becomes distressingly long. It puts me in mind of Rwanda, a country where I have spent a fair amount of time. In 1994, the U.S. dithered and made excuses while hundreds of thousands were slaughtered in just a few months. Many say that the U.S.'s reluctance to act in that case was the result of its earlier intervention in Somalia, where the Blackhawk Down episode took place. I am afraid I do not have a good answer to when and where the U.S. should use its economic (and/or military) power to push for justice in other countries. I would posit, however, that (in spite of you Ukraine example) the U.S. is most reluctant when the people being oppressed or murdered are non-European.
Tom KPosted by Allison L. Reid on Fri. July 25, 2014 12:32 PM

RE: Lawyers as Heroes and Collateral Damage from the Cold WarI, too, find this post very thought provoking, and as a bioethics major, I immediately think of the ethics around the issue of privacy as another example of situations that will require brave lawyers. We live in a world where there are assaults on certain rights perpetrated in the name of the War on Terrorism or national security. The courts will have to continue to balance citizens’ civil rights against expectations of privacy in an advanced technological world. Should the government be able to monitor everyone’s cell phones or emails in order to prevent a terrorist attack, or does the government need a reasonable suspicion for this surveillance? If we consent that this type of surveillance is necessary for public safety, where do you draw the line? Will this lead to government access to cameras on phones and computers? As technology continues to be enhanced and as governments continue to chip away at privacy, more political problems could develop. The U.S. allegedly uses spying tactics on Germany out of fear after the 9/11 attackers’ connection to training activities in Hamburg. If this spying pushes Germany closer to Russia and causes political damage, then has the attack on civil rights perpetrated in the name of the War on Terrorism helped the U.S.? Because of the fear and reality of terrorism on U.S. soil, brave lawyers will need to balance the expectation of privacy in modern society.Posted by Caroline Poma on Sat. August 2, 2014 4:13 PM

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